MOIDEEN Vs. VARKEY & OTHERS

JUDGEMENT

(1.) THE complainant in Calendar case 473 of 1961 on the file of the Sub -Magistrate of Thodupuzha has filed this appeal under Section 417(3) Cr. P.C., after obtaining special leave. The appellant is said to be the owner of 2 acres of garden land comprised in S. No. 165/1/8 of the Udumbanoor Village and the adjoining wet land 2 acres 57 cents in extent comprised in S. No. 166/1, 2, 3 & 4. There is a canal separating the two properties. The case for the prosecution is that on 23 -6 -1961 at about 5 p.m. all the accused with some others unknown formed themselves into an unlawful assembly and committed trespass upon the appellant's property, put up a log bridge across the canal and constructed a public pathway through the property. The first accused is the President of the local panchayat, the second accused is a member of the panchayat and the third accused is the Executive Officer (Panchayat Officer) of the panchayat. The other accused are either servants or coolies who worked under the direction of accused 1 to 3. Accused 1 to 3 raised a preliminary objection that under Section 90 of the Travancore -Cochin Panchayats Act - -hereinafter referred to as the Act - -they cannot be prosecuted without the previous sanction of the Government as the offence alleged to have been committed by them was done while they were acting in the discharge of their official duties.

(2.) THE complainant was examined, certain documents were marked and after hearing arguments of either side the learned Sub -Magistrate acquitted the accused. In paragraph 5 of the judgment it is stated that the panchayat has no right to put up a bridge and construct a public pathway through the land of the appellant, that the construction of the pathway would clearly be an encroachment upon the complainant's private rights and that it could have been constructed by the panchayat only with the consent of the owner or after taking acquisition proceedings. But the learned Magistrate proceeded to say that their act would be protected under Section 90 of the Act.

(3.) THE content of the expression "an act done or purporting to be done in the discharge of official duty" has been the subject of detailed and elaborate consideration in various decisions of the Privy Council, the Federal Court and the Supreme Court.